Dr Nandipha Magudumana‘s lawyer has argued that her arrest in Tanzania and subsequent deportation to South Africa for allegedly helping Thabo Bester escape from prison was a “grand disguised extradition”.
Thabo Bester prison escape
The Free State High Court in Bloemfontein on Thursday is hearing arguments in an urgent application by Magudumana to have her arrest in Tanzania in April declared unlawful.
Magudumana and Bester were apprehended in the city of Arusha by Tanzanian authorities. They had fled the country after it was discovered that Bester – a convicted rapist and murderer – had managed to escape from the Mangaung Correctional Centre in May last year, after he faked his death.
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Magudumana alleges that she was “abducted” and blindfolded during her detention, and she is requesting the dismissal of the multiple charges she is facing in relation to the elaborate prison escape.
However, the Department of Home Affairs (DHA), the National Prosecuting Authority (NPA), and the South African Police Service (Saps), who are the respondents in this case, have jointly accused the aesthetics doctor of providing false information about the events surrounding her arrest.
The DHA maintains that the actions of South African authorities were in accordance with the law, following the declaration by Tanzanian immigration officials that Magudumana and Bester were prohibited immigrants and subject to deportation back to SA under Tanzanian immigration laws.
According to the department, the Tanzanian immigration officers instructed the couple to leave the country within three days under escort.
The department further argues that it was the Tanzanian immigration officers who transferred Magudumana and Bester to the South African High Commission in Tanzania, and not Saps.
Advocate Anton Katz, who is representing Magudumana, contended that her deportation was essentially a “grand disguised extradition” and suggested that there was collusion between South African authorities and Tanzania in the process.
Katz, a lawyer that specialises in international law, argued that the South African government had entered into an agreement with Tanzanian officials to deport Magudumana and Bester, bypassing the standard procedure of filing an extradition request.
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Katz suggested that this alternative arrangement was made between the two governments without his client being informed of her rights.
“In deportations, there is no agreement between states… a deportation is essentially a unilateral act of the deporting state in order to get rid of an undesired alien. The purpose of deportation is achieved when the alien leaves the deporting state’s territory.
“The destination of the deportee is irrelevant for the purposes of deportation. It’s irrelevant and destination neutral… there can be no question of an agreement to deport to a particular destination,” he argued.
Advocate Katz further asserted that Magudumana was not informed of her rights with regard to the option of extradition instead of her being deported.
“That flies in the face of every single deportation [and] extradition doctrine throughout the world and through centuries and centuries,” he said.
“What could have happened, but didn’t happen, is that they could have said to the applicant: ‘Look, you’re going to be deported, whatever that might mean under Tanzanian law, but we want you back in South Africa, and if you consent to deportation – you’re going to be back in SA in this strange unlawful mechanism or do you insist on your rights and that we bring an extradition application.
“They didn’t do that to her and she had no clue.”
South African soil
The advocate also raised doubts about the claim made by the South African government in court documents that, upon being handed over to the SA High Commission in Tanzania, Magudumana and Bester were considered to be on South African soil.
Katz questioned the legal validity of this assertion, implying that it may not necessarily confer the same legal protections and rights as being physically present within the borders of South Africa.
“It’s unlawful on an international basis, on a constitutional basis, and as far as the law is concerned… we have some difficulty with the logic in that,”
The case continues.
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